Hopper v. Lovejoy

[578] The opinion of the court was delivered by Dixon, J. "We are satisfied with the decision of the learned advisory master respecting all the instruments in dispute, except the chattel mortgage made September 15th, 1882, by the Universal Rubber Company for $7,000. This he held to be inoperative against the receiver of the company representing its creditors, because it was not, in his opinion, lawfully recorded. The supposed illegality of the record arose from the fact that it had not been proved, but merely acknowledged, the master thinking that our statutes require all corporate.deeds to be proved by a subscribing witness in order to be recorded. The pertinent statutes are a supplement to the act concerning mortgages (P. L. of 1881 p. 226), which provides that no chattel mortgage shall be recorded unless the execution thereof shall be first acknowledged or proved, and such acknowledgment or proof certified thereon, in the manner prescribed by the act respecting conveyances, and the act respecting conveyances [Rev. p. 16%), which provides that any deed may be recorded if it “ Shall be acknowledged by the party or parties who shall have executed it, the officer having first made known the contents thereof to the person making such acknowledgment and being also satisfied that such person is the grantor mentioned in said deed, * * * or if it be proved, by one or more of the subscribing witnesses to it, that such party or parties signed, sealed and delivered the same as his, her or their voluntary act and deed.” We have not, as in-some states, e. g. Maryland and Missouri, 'they have, a statute relating toThe acknowledgment or proof of corporate deeds particularly; but no doubt exists that, under the act respecting conveyances, the deeds of corporations aggregate can be lawfully recorded, and therefore can be lawfully either acknowledged or proved. The opinion adopted by the master is, that they may be proved, but cannot be acknowledged. This opinion rests, I suppose, on the notion that the corporation, the party executing the deed, cannot in propria persona appear before the officer, be informed by him of its contents- and thereupon acknowledge its execution. But a similar difficulty exists [579] with regard to proving the execution. A subscribing witness cannot swear that the party, the corporation, in propria persona, signed, sealed and delivered the deed, for each of these three acts must be done by a representative of the corporate body. If, then, the statute implies that the representative of a corporation is the party executing a corporate deed, for the purpose of proof by a subscribing witness, why may it not also imply that such a representative is the party for the purpose of acknowledgment? The statute must receive such a construction as will attain its manifest object, which is, that all conveyances, whether by natural or artificial persons, may be recorded. Hence, we find that in Osborne v. Tunis, 1 Dutch. 633, this court, speaking by Chief-Justice Green, said: “A corporate deed can be proved only by proving that the seal affixed is the seal of the corporation, or that it was affixed as the corporate seal by an officer of the corporation, or other person thereunto duly authorized.” Such proof deviates widely from the language of the statute, which calls for proof of acts that are visible, that are done by the party himself, and that per se constitute the execution of the deed; while the opinion is complied with by proof of matters which are largely the inferences of the witness, which are the acts merely of an agent of the party, and which constitute per se only evidence of the execution of the deed. Applying similar liberality of construction to the clause of the statute authorizing acknowledgments, it will embrace corporate deeds. The act says the officer taking the acknowledgment must be satisfied that the person executing and acknowledging the deed is the grantor mentioned in it. With regard to corporate deeds, he must therefore be satisfied that such person is, in the eye of the law, the grantor mentioned in it — that is, authorized to represent the corporation in executing and acknowledging the conveyance. Being so satisfied, he accepts the acknowledgment of the representative as that of the grantor itself. This accords with the view expressed in other states upon like enactments. Thus, in Merrill v. Montgomery, 25 Mich. 73, the court said, as to corporate deeds, “ the acknowledgment is to be made by the person representing the corporation in that act.” [580] And in Lovett v. Steam Saw Mill Association, 6 Paige 54, Chancellor Walworth, speaking of the New York Registry act, which required deeds to be acknowledged by the party executing the-same, said: “ The officer or agent of a corporation, who executes-a deed in the name of the corporation, by affixing thereto the-impression of the common or corporate seal entrusted to his care, is the party executing the deed, as it is impossible that a corporation aggregate should execute or acknowledge a deed in person.”' Our conclusion is, that, on the appeal of the receiver, those-parts of the decree of which he complains should be affirmed,, and, on the appeal of Susan C. Lovejoy, that part of the decree-which holds her chattel mortgage above mentioned invalid' against the receiver, should be reversed, and that part which relates to the amount due upon her mortgages of October 27th-, T887, should be affirmed. For affirmance — The Chief-Justice, Dixon, Garrison, Magie, Reed, Scudder, Yan Syckel, Brown, Clement,, Smith, Whitaker — 11. For reversal — None.